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Dear Sir / Madam LETTER BEFORE CLAIM UNDER Chief Regulator, Office of Qualifications and Examinations Regulation BY EMAIL ONLY: [email protected] Dear Sir / Madam 23 August 2020 Rook Irwin Sweeney LLP LETTER BEFORE CLAIM UNDER THE PRE-ACTION PROTOCOL FOR JUDICIAL REVIEW 107—111 Fleet Street London Re: Public First Contract EC4A 2AB We act for the Good Law Project Limited (“GLP”) which seeks to challenge the Our Ref: PS:AMI:117 lawfulness of the decision of the Office of Qualifications and Examinations Regulation (“Ofqual”) to award a Public Service Contract within the meaning of Regulation 2 of the Public Contracts Regulations 2015 to Public First Limited (“Public First”) to assist Ofqual with communicating its A-level and GSCE results plan to help secure public confidence in the strategy (“the Contract” / “the Communications Services”). From the information available to us (which is extremely limited absent any contract award notice or contract having been provided by Ofqual), it appears that Ofqual entered into the contract with Public First on or around 13 June 2020 without any prior advertisement or any competitive tender process. It is understood that the Contract was let by direct award on grounds of urgency but to date no notice of award has been published on Contracts Finder nor any other procurement portal. It is understood that the value of the Contract is worth in excess of the applicable threshold for a Public Service Contract but Ofqual has, to date, refused to confirm the precise value of the award. The GLP first learned of this award through reporting in a national newspaper on 20 August 2020,1 no prior notice of the award of the Contract having been published by Ofqual before 20 August 2020. In light of the limited details available to GLP about the circumstances in - and basis on - which the Contract was awarded, GLP’s rights are fully reserved. In the circumstances, there can be no suggestion that the proposed claim could be said to be time barred. In the event that Ofqual considers otherwise, it is requested to so indicate by return, setting out its detailed reasons for any such position. If any such contention is made, GLP further reserves the right to issue protective proceedings. 1 https://www.theguardian.com/education/2020/aug/20/firm-linked-to-gove-and- cummings-hired-to-work-with-ofqual-on-a-levels 1 Proposed claim for judicial review To: The Office of Qualifications and Examinations Regulation Earlsdon Park, 53-55 Butts Rd, Coventry CV1 3BH 2 The claimant Good Law Project Limited 3 East Point High Street Seal Sevenoaks Kent United Kingdom TN15 0EG Please direct all correspondence to the proposed Claimant’s solicitors whose details are set out in section 4 below. 3 The defendant’s reference details Unknown 4 The details of the claimant’s legal advisers dealing with this claim Anne-Marie Irwin Rook Irwin Sweeney LLP 107-111 Fleet Street London EC4A 2AB Reference: PS:AMI:117 Email: Telephone: 5 The details of the matter being challenged The Claimant seeks to challenge the lawfulness of the decision of Ofqual on or around 13 June 2020 to award a public contract to Public First for the supply of the Communications Services. The Claimant understands that not a single other prospective supplier was given the opportunity to submit a tender for the Contract. 6 The details of any Interested Parties Public First Limited 143 Tamworth Road Nottingham NG10 1BY Public First is an interested party and it has been copied in this letter. 7 The issue Summary of facts 1. Public First is a company registered in England under company number 10149826. Its registered address is Ashleigh Villa, 143 Tamworth Road, Long Eaton, Nottingham, NG10 1BY. It is a public policy research agency and describes its work as follows: “We help organisations understand and influence public opinion through research and targeted communications campaigns. And we help businesses craft policy ideas that Governments can realistically apply to difficult issues.”2 2. The directors and owners of Public First are Ms Rachel Wolf and Mr James Frayne (who are married to one another). Ms Wolf and Mr Frayne appear to have close personal and professional connections with the Minister for the Cabinet Office (the Rt Hon Michael Gove MP), the Chief Adviser to the Prime Minister who works in the Cabinet Office and who is head of communications in Number 10 Downing Street (Mr Dominic Cummings) and the Conservative Party. In particular: a. As to Mr Frayne: i. Mr Cummings and Mr Frayne were co-founders of the New Frontiers Foundation think-tank.3 ii. According to Mr Cummings’ blog4, in 2004, he and Mr Frayne (together with Mr Cummings’ uncle) “set up the campaign to fight the referendum on the North East Regional Assembly as a training exercise for an EU referendum”. iii. In 2011, the Rt Hon Mr Gove (then Secretary of State for Education) appointed Mr Frayne as Director of Communications for the Department for Education. In that position he worked alongside Mr Cummings, who was then Special Adviser to the Rt Hon Mr Gove at the Department for Education. 2 www.publicfirst.co.uk 3 https://en.wikipedia.org/wiki/Dominic_Cummings 4 https://dominiccummings.com/tag/echr/ b. As to Ms Wolf: i. She formerly worked as an advisor to the Rt Hon Mr Gove.5 ii. She has also worked for Mr Cummings.6 iii. She founded the “New Schools Network”, a charity which supported the ‘academisation’ of public schools, under a programme of reform designed by the Rt Hon Mr Gove and Mr Cummings. The New Schools Network drew public criticism for receiving £500,000 of public money without being required to undergo a competitive bidding process.7 iv. She has been a vocal public supporter of Mr Cummings’ plans for reform of the civil service.8 c. Ms Wolf co-authored the Conservative Party’s manifesto for the 2017 general election. 3. It appears that Public First was included on a dynamic purchasing system (“DPS”) list – namely the “Research Marketplace Dynamic Purchasing System RM6018”. There are 314 suppliers on that particular DPS list. We note that contracts to suppliers on a DPS list must still be competitively tendered pursuant to regulation 34 of the Public Contracts Regulations 2015, which requires the use of the restricted procedure for DPS competitions. In particular, regulation 34(21) requires that, for any contract awarded under a DPS, the contracting authority must invite all suppliers on the DPS list to submit a tender. 4. Insofar as the Communications Services consisted of devising a strategy to enable Ofqual to communicate its A-level and GSCE results plan to help secure public confidence in the strategy, such communications arose from the decision of 18 March 2020 that public examinations (including GCSE and A-levels) would not take place in summer term of the 2019-2020 academic year. On 18 March 2020, the Secretary of State for Education Gavin Williamson stated in Parliament that:9 “I can confirm that we will not go ahead with assessments or exams and that we will not be publishing performance tables for this academic year. 5 https://www.independent.co.uk/news/education/schools/time-for-change-how-a- young-woman-plans-to-shake-up-the-school-system-1818636.html. 6 https://www.conservativehome.com/thecolumnists/2019/09/rachel-wolf-in-defence-of- cameron.html. 7 https://schoolsweek.co.uk/rachel-wolf-new-schools-network-founder-creator-parents- and-teachers-for-excellence-profile/. 8 https://www.telegraph.co.uk/politics/2020/01/01/civil-servants-could-forced-sit-exams- prove-competence-sweeping/. 9 https://hansard.parliament.uk/Commons/2020-03-18/debates/FCD4DEB2-86A8-4F95- 8EB8-D0EF4C752D7D/EducationalSettings We will work with the sector and Ofqual to ensure that children get the qualifications that they need.” Ofqual in turn stated:10 “We welcome the certainty that the Secretary of State’s decision not to hold exams this summer provides in these challenging circumstances. We will now work urgently with the Department for Education to work through the detail of this decision and to provide more information as soon as possible.” 5. On 3 April 2020, Ofqual released details on how, amongst other things, GCSEs and A-levels would be graded and awarded in 2020.11 It stated that the process would involve teachers combining a number of factors to come up with a grade they believe a student would have got had they completed the year and sat their exams as normal. That was to include: (i) performance on mock exams and other non-exam assessments; (ii) attainment at previous education levels; and (iii) performance in any mock exams. Once submitted, it was proposed that all teachers’ grades would be moderated by Ofqual before a final grade is decided. Ofqual published guidance for teachers on when submission deadlines would be and a letter to students explaining how this would affect them. As GLP understands it, Public First had no involvement in the development of that strategy or the communication thereof. 6. On 14 April 2020, Ofqual announced how it proposed that BTEC qualifications would be graded and awarded in 2020.12 As many students were unable to complete course work, students would receive results for their final qualification grades that would be calculated by their teachers, based on an analysis of all assessments completed before the COVID-19 restrictions came into force. Ofqual indicated that it would work alongside institutions who deliver BTEC courses to finalise what qualifications will be eligible to be given a calculated final grade. As GLP understands it, Public First had no involvement in the development of that further aspect of the proposed strategy or the communication thereof.
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